McLean v. City of Spirit Lake

Citation430 P.2d 670,91 Idaho 779
Decision Date27 July 1967
Docket NumberNo. 9893,9893
PartiesAdeline Barden McLEAN, d/b/a Fireside Lodge, Plaintiff-Respondent, v. The CITY OF SPIRIT LAKE, Operations of the Spirit Lake Municipal Water System, Defendant-Appellant.
CourtUnited States State Supreme Court of Idaho

Lyons & Hofmeister, Sandpoint, for appellant.

J. Ray Cox, Coeur d'Alene, for appellee.

McFADDEN, Justice.

Adeline Barden McLean, the plaintiff-respondent, owner and operator of the Fireside Lodge, a lakeside tavern and resort, instituted this action against the City of Spirit Lake, defendant-appellant, seeking compensatory damages allegedly occasioned by the interruption of water service from the city-owned water system to the Fireside Lodge, and also punitive damages. The defendant city, a city of the second class, by its water system furnishes water for use of the inhabitants of the city, including the Fireside Lodge, which is within the city limits.

The case was tried before a jury on the issues framed by plaintiff's complaint, and the defendant's answer which generally denied the allegations of plaintiff's complaint, without interposing any affirmative defenses to the action. At the trial, evidence was introduced reflecting that during a period of extreme cold, commencing about December 17, 1964, the defendant city abruptly shut off the supply of water to the plaintiff's premises without notice to her, which interruption in service continued for a period of about two weeks, resulting in freezing of the plumbing and fixtures and flooding of the premises, causing the damages which led to this action. The defendant city introduced evidence tending to show that the shut-off of the supply of water to plaintiff's was necessitated by the breakdown of one of the city's two pumps supplying the system, and that the water previously channeled to plaintiff's premises was diverted temporarily to the other users of the community.

The jury rendered its verdict in favor of the plaintiff, awarding damages as follows:

'We, the jury, duly empaneled to try the above entitled cause, find our verdict for the plaintiff, ADELINE BARDEN Mc,LEAN, and award her damages as follows:

General damages in the sum of $2,236.18, and punitive damages in the sum of $_ _

Judgment was entered on this verdict and this appeal followed from the judgment and also from the order denying defendant's motion for judgment notwithstanding the verdict or for a new trial.

The city assigns two errors: (1) That the trial court erred in denying its motion for judgment notwithstanding the verdict or for new trial; and (2) That the trial court erred in giving an instruction concerning punitive damages.

One of the grounds for defendant's motion for judgment notwithstanding the verdict or new trial was that plaintiff allegedly failed to conform to the requirements of I.C. § 50-2010, which requires the filing of a claim for damages with the city clerk prior to instituting an action against a city of the second class as follows:

'All claims for damages against cities of the second class '* * * must be filed with the clerk within six months after the time when such claim for damages shall have accrued, specifying the time, place, character and cause of said damages. No action shall be maintained against the city * * * for any claim for damages until the same has been presented to the city council, and until sixty (60) days have elapsed after such presentation. * * *.' I.C. § 50-2010.

It is the defendant's contention that the record in the trial court and before this court fails to show any claim was so filed, and that it was incumbent upon plaintiff to plead and prove such a claim was filed prior to instituting this action.

Comparable statutory provisions for notice to a municipality as a prerequisite to the maintenance of an action against the municipality have often been considered in other jurisdictions. See generally, Annots.: 83 A.L.R.2d 1178 (1962); 65 A.L.R.2d 1278 (1959); 153 A.L.R. 329 (1944); 82 A.L.R. 749 (1933). Although there are authorities which treat such provisions as defensive issues to be raised by demurrer or answer, similar in nature to a statute of limitations, (See: Brandner v. City of Aberdeen, 78 S.D. 574, 105 N.W.2d 665 (1960); Lynch v. City of Terre Haute, 123 Ind.App. 282, 109 N.E.2d 437 (1952); City of South Norfolk v. Dail, 187 Va. 495, 47 S.E.2d 405 (1948)), I.C. § 50-2010 is couched in mandatory language requiring the filing of notice as a condition precedent to institution of an action, and it is generally incumbent upon a plaintiff seeking redress against a city of the second class to plead and prove substantial compliance with the statutory notice requirement. See: Halvorson v. City of Decorah, 138 N.W.2d 856 (Iowa, 1965); White v. Johnson, 272 Minn. 363, 137 N.W.2d 674 (1965); Paddock v. Town of Brookline, 347 Mass. 230, 197 N.E.2d 321 (1964); Thomas v. City of South Charleston, 148 W.Va. 577, 136 S.E.2d 788 (1964); Marino v. Town of East Haven, 120 Conn. 577,192 A. 225, 103 A.L.R. 295 (Conn., 1935); Bigelow v. City of Los Angeles,141 Cal. 503, 75 P. 111 (1904); MacLeod v. Town of Milford, 25 Conn.Sup. 70, 196 A.2d 604 (1963); Ghiozzi v. City of South San Francisco, 72 Cal.App.2d 472, 164 P.2d 902 (1946). See also: 18 McQuillin, Municipal Corporations (Rev.Ed.1963) § 53.154 and cases cited at note 21 p. 559; 38 Am.Jur. Municipal Corporations, §§ 673, 674. Cf. Dunn v. Boise City, 45 Idaho 362, 262 P. 507 (1927).

Research fails to disclose that I.C. § 50-2010 has ever been previously considered by this Court. However, in Dunn v. Boise City, supra, this court considered the provisions of C.S., Sec. 3847 (I.C. § 50-162), pertaining to the requirement of filing with the city clerk a claim for damages against a city of the first class. Therein it was held that such statutory provision making the filing of a claim against a city of the first class a condition precedent to an action against the city required only substantial compliance with the provisions, the court stating, '* * * a substantial compliance is all that is required in 'specifying the time, place, character and cause of said damage.' (citations) The object of the statute must be kept in mind, and it should not be given a construction that will defeat the ends of justice.' This court in Dunn v. Boise City, supra, in discussing the purpose of such statutory provision, quoted from Anderson v. City of Minneapolis, 138 Minn. 350, 165 N.W. 134, as follows:

"The main purpose of the statute is not to require such a statement of the circumstances as to show an absolute liability but rather such information that the authorities may be able to make a full investigation of the cause of the injury and determine the city's liability therefor." 45 Idaho at 367, 262 P. at 509.

Such statutes are intended only 'to afford a modicum of protection to the municipality in its defense of the tort action.' Rhyne, Municipal Law (1957), § 30-32, p. 788. See also, Cox v. City of Pocatello, 77 Idaho 225, 291 P.2d 282.

Recognizing that the defendant city is correct in its contention that it was incumbent upon the plaintiff to plead and prove the filing of a claim against the city, it is our conclusion that the record does show the filing of such a claim. Plaintiff's original complaint set forth two separate causes of action. The first of these sought damages accruing from the alleged backing up of water onto her premises in the late summer of 1964. At the opening of the trial, defendant moved for dismissal of plaintiff's claims for relief. The trial court granted defendant's motion as to the first cause because of plaintiff's admitted failure to file any claim on the first cause with the city clerk as required by I.C. § 20-2010. The memorandum decision of the trial court considering the defendant's post verdict motion recites:

'In the course of this (defendant's pretrial motion for dismissal) discussion defendant's counsel admitted such a claim had been filed on the second cause of action, stating 'We recognize that there was notice in regard to the second cause of action, which was rejected, but no claim to the city on the (first cause)' * * *.'

Moreover, at the close of the plaintiff's case, defendant presented a motion, in effect a motion for directed verdict, and its counsel stated: 'I concede that the plaintiff did not plead this (presentation of claim to the city). However, it was within our knowledge, however, not within the jury's knowledge this claim was submitted to the city.' On argument of this appeal, the defendant in effect admitted that a claim had been filed prior to institution of plaintiff's action.

It is settled law in this state that a formal admission made by an attorney at trial is binding on his client as a solemn judicial admission. Hill v. Bice, 65 Idaho 167, 139 P.2d 1010. See, Bell, Handbook of Evidence (1957), p. 159. It is well recognized that a judicial admission, applied to the judicial proceedings in which it is made, limits the issues upon which the cause is to be tried and obviates the necessity for proof of facts within the ambit of a distinct and unequivocal admission or stipulation so made. 31A C.J.S. Evidence § 299, p. 765, § 381e, p. 926; 29 Am.Jur.2d Evidence § 615, p. 668; 9 Wigmore, Evidence (3rd Ed. 940);, §§ 2588, 2590, pp. 586, 587.

Defendant city having, through its counsel, admitted the actual filing by plaintiff of her claim with the city in conformity with the mandate of I.C. § 50-2010, no issue of fact as to whether a claim had been filed remained for consideration; under the existing rules, plaintiff's pleadings are deemed amended to conform to such proof. I.R.C.P. 15(b). Defendant cannot be heard to complain of variance between the pleading and proof, absent a showing it was thereby misled to its prejudice. Frost v. Mead, 86 Idaho 155, 383 P.2d 834; Wurm v. Pulice, 82 Idaho 359, 353 P.2d 1071. It is our conclusion that defendant's contention respecting the failure to submit...

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